Whither, the EU Charter of Fundamental Rights

So, has the Charter come of age, now that it is nearing its quarter century, and has been binding in force for nearly 15 of those years. According to ECJ President, Koen Lenaerts, as long ago as 2018, Charter rights were playing an appreciable role in at least 10% of cases to come to the Court. Further, in at least some of those cases, the Court is actually annulling EU measures for violating fundamental rights – something it conspicuously declined to do in its earlier days. No longer is the Charter a “sleeping beauty”, and no longer are fundamental rights mere epiphenomena in EU law – offshoots framed in the amorphous category of “general principles of law” – creations of the EU’s earlier desire for legitimacy in its quest for greater integration.

The fact that over the past few years the CJEU has decided a string of cases on the right to wear the Islamic headscarf at work (Bougnaoui, Achbita, WABE and Müller, OP v Commune D’Ans) illustrates its coming of age as a Court seized with human rights (even if those decisions seem to have satisfied almost no-one). Add to this the fact that the Charter contains a comprehensive catalogue of rights, refreshing in its efforts to maintain the indivisibility of civil and political rights on the one hand, and socio economic on the other. Factor in also the fact that applying the Charter offers the possibility of an effective remedy in national courts, which have the power to invalidate national law in conflict with Charter rights – and you have a recipe for a success story. No wonder the UK declined to include the Charter in the category of “retained EU law” in the 2018 EU Withdrawal Act – for was it not becoming a dangerously powerful instrument?

But of course, there is always another view. It would be easy enough to rain on the Charter’s parade. One might start with its limited scope – according to Art 51(1) Charter it is addressed “to the Member States only when they are implementing Union law.” It is not federal in nature, and, unlike the US Constitution’s Bill of Rights, does not apply to EU States’ actions within their sole sphere of competence. This fact has of course given rise to some highly complex case law determining when the Charter applies, starting with Fransson (after which the Court almost immediately shifted direction), whereby the scope of EU law has become the main determining factor as to whether any human rights violation may be pleaded. This jurisdictional limit is complex in the extreme (whole treatises have been written on it) transforming legal argument into a debate about the arcane limits of the EU’s competences rather than a focus on human rights. So much so, that a great deal of legal advice, and much time, of EU rights lawyers must be spent on determining when Art 51(1) applies. When will a national measure be caught? And will the Charter be invocable against a private party? How much time will it take to determine this?

Here’s a thought: what if the Charter were to apply throughout the EU, regardless of whether EU law applied? This would simplify a complex jurisdictional matter but require (unanimous) amendment of the Charter itself. If the CJEU were to attempt, by some sort of interpretative fiat (perhaps following the 1925 example of the US Supreme Court in Gitlow v New York) to broaden the Charter’s scope to all Member States’ actions, this would likely provoke outrage from national courts and authorities. So, this doesn’t seem feasible.

A further issue relates to limitations on the Charter. Art 52(1) Charter states that these must be “provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.” Art 52(3) states that where Charter rights correspond to ECHR rights “the meaning and scope of those rights shall be the same as those laid down by the said Convention.” Apart from the task of figuring out which rights in the Charter correspond to ECHR rights, there is the problem that limitations to ECHR rights are not worded identically to Art 52(1). CJEU decisions reveal a lack of methodology in applying exceptions and justifications. For example, when the CJEU applies the Charter and its limitations in the field of discrimination law, it is sometimes unclear which tests it is adopting to determine if conduct interfering with the right to equal treatment is justified. In the 2011 Tests Achats case, the Court made no reference to Art 52(1) in determining the invalidity of the measure under Art 21 Charter. And how do these criteria interact with possible objective justifications for indirect discrimination where e.g. the Race and Framework Employment Directives are at issue?

More generally, the CJEU often focuses on whether the interference with a Charter right has been in pursuance of a legitimate interest, and if so, whether that interference was proportionate. But what is a legitimate interest? And what standard of proportionality should be applied? In Weiss (2 BvR 859/15, 5 May 2020, not a fundamental rights case, but one on ECB bond purchases) the German Constitutional Court refused to follow the ECJ’s judgment in C-493/17 Weiss, on the grounds that CJEU failed to apply the German interpretation of proportionality and had not fully “balanced” economic arguments. The assessment of the proportionality is only as good as the reasoning and motives of those engaging in it, and, as we can see, reasoning can differ. In this way, Charter rights claims can be exhausted by the weighty, technical, often casuistic operation of the law.

And this is before we even get on to claims of substance. Has the Charter been a success story in terms of outcomes? How many litigants have (after sometimes years of litigation) benefited from its rights protection? How many are even aware of its existence?(A 2019 Eurobarometer survey, on the 10^th anniversary of its becoming legally binding, revealed that the majority (57%) of those surveyed were unaware of it.) Although the Charter is now far more frequently litigated in the CJEU, there is an unevenness in the Court’s application and resolution of Charter rights – some are far more frequently and effectively deployed than others. Art 47, the right to an effective remedy and a fair trial, is more frequently and robustly enforced than say, Charter rights on Solidarity in Title III (which also proved of little effect during the Eurocrisis). The right to the confidentiality of business information has been just as energetically furthered by the CJEU as have rights to asylum or immigration. Further, in cases such as Viking and Laval, the CJEU has placed the right to free movement (of business rights) above any collective rights of bargaining or industrial action. Is there still a residual favouring of economic rights over other types of rights by the Court? Although non-discrimination rights have the longest history in EU law, dating back to early litigation on Art 119 EEC in Defrenne, the Race and Framework Directives have often proved disappointing in their enforcement – or lack of it – for many litigants, and Art 21 Charter has too often been ignored as a supplement, as in Jyske Finans, or Bougnaoui or Achbita. There is also of course the problem with Charter “principles”. What are they? Are they mainly confined to the social field? Which Charter rights are also, or only, principles? How much time and reasoning (of judges, Advocates-General, lawyers, jurists) will be spent to work this one out?

And there is also the issue that the CJEU has shown itself to have a very strong concern with the autonomy of EU law. Notably, the Explanations to Art 52 Charter (requiring limitations to Charter rights to be read in the light of the ECHR) also note this should occur “without thereby adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union.” The Court’s Opinion 2/13 on the possibility of EU accession to the ECHR was replete with pronouncements on the autonomy and special position of EU law, and most particularly concern for the Court’s own prerogatives as ultimate determinant of the EU legal order. How can this concern with EU autonomy work itself out in an EU of 27 States, in the field of fundamental rights, where there may be 28 (i.e. including that of EU officials themselves) conceptions of what rights are, and how they should operate?

Within any field of law, human rights rarely, if ever, function as straightforward rules. More often, like Dworkin’s definition of legal principles, they have a “dimension of weight” – i.e. freedom of expression may sometimes be outweighed by pressing societal interests such as national security. Rights may be phrased very simply in terms of brevity and concision (e.g. “Congress shall pass no law abridging the freedom of speech”) yet be epistemologically complex in relying on general, transcendent ideas – as to, for example, what it is that constitutes “speech”. So it is with human rights in the EU. Their complexity depends on their culture, which determines how these provisions are understood, but also therefore introduces contestation into the concept of human rights, rendering them less than straightforward to apply.

What happens when the autonomy of EU law runs into the culture and contestation of national human rights (especially when the majority of cases in which the Charter figures have come by way of a preliminary reference from national courts)? Will the CJEU eventually elaborate a complex “margin of appreciation” doctrine (following, or distinguishing itself, from the ECtHR) or evolution of the “rule of reason” it applied in the Cassis de Dijon case? If not, will there be more cases like Weiss, or Ajos – in which the Danish Supreme Court refused to follow the CJEU on age discrimination?

But if this is to happen – i.e. if the CJEU is to conceive a margin of appreciation for EU Charter cases, where would legitimacy for the elaboration of such a doctrine come from, given there exists no apparent source in the Charter, and its development in the ECHR is in any case viewed with suspicion. Furthermore, (still, 70 years on) somewhat terse style of CJEU judgments, originally modelled on those of the French Conseil d’Etat, is not particularly productive of substantive discussion of human rights case law. Especially given the requirement that judgments be unanimous, which – for better or worse – appears to stifle creativity. CJEU judgements, even when dealing with intimate human interests, can be terse and gnomic.

So, the prognosis for the Charter may be ambiguous. However, to conclude – in 1977, the English Marxist historian, EP Thompson, surprised (and was ostracized by) many by describing the rule of law as “an unqualified human good”. He did so, he wrote, because, even if the rule of law operated as an ideology, it also operated to require those governing to acknowledge constraints on how they governed, to acknowledge “effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims.” Might we say the same of the EU Charter? The EU Charter contains the essence of a common language, a currency that all can understand, even if it is interpreted inconsistently and unsystematically. It still provides a means of importing morality and ethics into law, of holding power accountable, the basis for substantive justice – and the EU is better with it than without it.